EXHIBIT 10.1
EMPLOYMENT AGREEMENT LION, INC.
(Xxxxxxx X. Xxxxx, CEO)
This Employment Agreement (this "Agreement") is made effective
the 11th day of December, 2006 ("Effective Date"), by LION, Inc. ("Employer"),
and Xxxxxxx X. Xxxxx ("Executive"), Employer's Chief Executive.
RECITALS
Employer desires Executive's employment with Employer, and Executive
wishes to accept such employment, upon the terms and conditions set forth in
this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Section 1.
"Basic Compensation" is defined as Salary and Benefits (see Section
3.1.1 and 3.1.2).
"Bonus Compensation" is defined in Section 3.2.
"Cause" is defined in Section 6.2
"Confidential Information" is defined as the following information and
materials in written, oral, magnetic, photographic, optical or other form and
whether now existing or developed or created during the term of this Agreement
which are proprietary to Employer and are highly sensitive in nature.
INFORMATION MARKED PROPRIETARY OR CONFIDENTIAL. All data,
documents, materials, drawings and information in tangible form and marked
"Proprietary" or "Confidential."
PRODUCTS. Any and all ideas, designs, inventions, discoveries,
processes, methods, plans, concepts, methods, techniques, structures,
specifications, design specifications, design notes, flow charts, documentation,
technical and engineering data, laboratory studies, test results and any other
information and materials, whether or not in tangible form, relating to
Employer's operations.
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TRADE SECRETS. All Employer's trade secrets, as defined in the
Washington Trade Secrets Law, RCW 19.108 et seq. and including without
limitation, the specific terms of Employer's relationships or agreements with
significant vendors and customers, and targeted prospective vendors and
customers; Employer's customer list; and information concerning Employer's
management, finance, marketing and business plans.
LEGAL RIGHTS. Patents, copyrights, trade secrets, trademarks,
and service marks ("Intellectual Property"), including any documents containing
information concerning such Intellectual Property.
THIRD PARTY INFORMATION. Any and all information and materials
in Employer's possession or under its control from any other person or entity
which Employer is obligated to treat as confidential or proprietary ("Third
Party Information").
NOT GENERALLY KNOWN. Any and all information not generally
known to the public or within the industries or trades in which Employer
competes.
"Effective Date" means the date stated in the first paragraph of the
Agreement.
"Employment Period" means the period beginning on the Effective Date
and ending at 11:59 PM on December 31, 2009, or earlier if upon termination of
Executive's employment pursuant to Section 6.
"Person" is any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
"Post-Employment Period" is defined in Section 8.2.4.
"Proprietary Items" is defined in Section 7.2.4.
"Salary" is defined in Section 3.1.1.
"Severance Benefit" is defined as continuation of, or payment to
maintain, Executive's Basic Compensation, at the level Executive was receiving
at the time of termination, for a period of six (6) months ("the Severance
Period"). Salary will be paid during the Severance Period pursuant to Employer's
payroll practices in effect on the date of Executive's termination. In order to
be eligible to receive a Severance Benefit, Executive agrees that he must first
sign a full waiver and release of claims against Employer and its directors,
officers, employees, and affiliates.
1.12 "Stock" is Common stock of LION, Inc.
EMPLOYMENT AND DUTIES
EMPLOYMENT
Employer hereby employs Executive, and Executive hereby accepts
employment by Employer, upon the terms and conditions set forth in this
Agreement.
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TERM
Subject to the provision of Section 6, the term of Executive's
employment under this Agreement will be from the Effective Date until and
including December 31, 2009.
DUTIES
Executive will have such duties as are assigned or delegated to
Executive by the Board of Directors of Employer and will serve as Chief
Executive Officer. Executive will devote his entire business, time, attention,
skill, and energy exclusively to the business of Employer, will use his best
efforts to promote the success of Employer's business, and will cooperate fully
with the Board of Directors in the advancement of the best interests of
Employer. If Executive is elected as a director of Employer or as a director or
officer of any of its affiliates, Executive will fulfill his duties as such
director or officer without additional compensation, and shall be deemed removed
by automatic resignation from any and all such positions upon termination of his
employment.
COMPENSATION
BASIC COMPENSATION
SALARY. Executive will be paid an annual salary of $250,000,
subject to adjustment as provided below (the "Salary"), which will be payable in
equal periodic installments according to Employer's customary payroll practices,
but no less frequently than monthly. The Salary and Benefits (i.e. Basic
Compensation), and Bonus Compensation will be reviewed by the Board of Directors
not less frequently than annually.
3.1.2 BENEFITS. Executive will, during the Employment Period,
be permitted to participate in such pension, profit sharing, bonus, life
insurance, hospitalization, major medical, and other employee benefit plans of
Employer that may be in effect from time to time, to the extent Executive is
eligible under the terms of those plans (collectively, the "Benefits").
BONUS COMPENSATION
Effective with this Agreement, Employer shall grant Executive two
million (2,000,000) stock options for its Stock, with vesting subject to
Executive's employment with Employer and the conditions precedent (stock price
milestones) set forth in the vesting schedule attached hereto as Exhibit A. For
each stock price milestone to be satisfied, the underlying closing stock price
must average the goal price for a twenty (20) day trailing trading period. All
such options, once vested, must be exercised, if at all, in accordance with
Employer's stock plan, including all deadlines for any such exercise, with the
exception that if Executive's employment with Employer is terminated for any
reason other than "Cause for Employer" then Executive shall have a period of six
(6) months following Executive's termination of employment to exercise vested
options eligible for exercise. If all two million (2,000,000) stock options
granted pursuant to this Section vest before December 31, 2009, Employer's
Compensation Committee shall meet for purposes of determining an additional
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stock option grant for Executive, guided by then existing stock option grants
for chief executive officers of similarly situated companies, overall Employer
performance, and future economic prognosis. The maximum value of any such stock
option grant shall not exceed the maximum realized and/or potential economic
value of the two million (2,000,000) options previously granted, as of the date
of the grant of the last tier of eight hundred thousand (800,000) options
referenced in Exhibit A. In the event of a Change in Control as defined in
Section 6.3.6, remaining unvested options granted to Executive shall immediately
vest, provided that such immediate vesting shall be limited to a maximum of one
million (1,000,000) options.
FACILITIES AND EXPENSES
GENERAL
Employer will furnish Executive office space, equipment, supplies, and
such other facilities and personnel as Employer deems necessary or appropriate
for the performance of Executive's duties under this Agreement. Employer will
pay on behalf of Executive (or reimburse Executive for) reasonable expenses
incurred by Executive at the request of, or on behalf of, Employer in the
performance of Executive's duties pursuant to this Agreement, and in accordance
with Employer's policies. Executive must file expense reports with respect to
such expenses in accordance with Employer's policies.
BUSINESS EXPENSES
Employer shall reimburse Executive for all reasonable, ordinary and
necessary business expenses incurred by Executive in the performance of his
duties and the promotion of the Employer's business.
CELLULAR PHONE
Employer will pay for and provide Executive with a cellular phone,
phone service and wireless connectivity device for business use if so requested
by the Executive.
VACATIONS AND HOLIDAYS
Executive will be entitled to vacation each calendar year in accordance
with the vacation policies of Employer in effect for its employee officers from
time to time, in any event not less than four (4) weeks vacation a year.
Vacation must be taken by Executive at such time or times as approved by the
Board of Directors. Executive will also be entitled to the paid holidays set
forth in Employer's policies. Vacation days and holidays during any calendar
year that are not used by Executive during such calendar year may not be used in
any subsequent calendar year without Employer's prior written consent.
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TERMINATION
EVENTS OF TERMINATION
This Agreement, the Employment Period, Executive's Salary and Benefits
and any and all other rights of Executive under this Agreement or otherwise as
an employee of Employer will terminate (except as otherwise provided in this
Section 6) on the earliest of:
the death or Permanent Disability of Executive;
written notice by Executive;
written notice by Employer; or
For Cause (as defined in Section 6.2), immediately upon notice
from Employer to Executive, or Executive to Employer, as applicable.
DEFINITION OF "FOR CAUSE"
For purposes of Section 6.2, "Cause for Employer" shall mean any of the
following: (i) Executive's theft, dishonesty, or falsification of Employer's
documents or records; (ii) Executive's participation in a fraud or act of
dishonesty against Employer; (iii) any action taken in bad faith by Executive
which has a detrimental effect on Employer's reputation or business; (iv)
Executive's willful failure or inability to perform any reasonable assigned
duties that is not remedied by Executive within forty five (45) days of written
notice of such failure or inability from Employer; (v) Executive's unremedied
material breach of this Agreement after receipt of the written notice discussed
above, or any violation of Employer's written policies constituting gross
intentional misconduct adversely and demonstrably affecting Employer's business
or reputation; (vi) Executive's conviction (including any plea of guilty or NOLO
CONTENDERE) of any felony or crime involving dishonesty, moral turpitude, or
theft; (vii) material failure by Executive to comply with applicable laws or
governmental regulations with respect to Employer's operations or the
performance of Executive's duties; or (viii) any intentional act of unlawful
sexual or other harassment in violation of Title VII of the Civil Rights Act of
1964 (as amended) or analogous state law.
For purposes of Section 6.2, "Cause for Executive" shall mean any one
of the following events which occurs without Executive's consent: (i) any
reduction of Executive's then existing compensation or benefits, except to the
extent that such compensation of all other senior executives of Employer is
equally reduced; (ii) any material diminution of Executive's duties,
responsibilities, authority, reporting structure, titles or offices provided
Executive gives Employer written notice of such material diminution and it is
not remedied by Employer within forty five (45) days of receipt of such notice;
(iii) any material breach by Employer of its obligations under this Agreement
that is not remedied by Employer within forty five (45) days of written notice
of such breach from Executive; (iv) another entity or person becoming the
majority owner through a hostile takeover of Employer; (v) a slate of directors
is elected, a majority of which were not recommended by the existing directors
and management prior to the vote; or (vi) any request that Executive relocate to
a work site that would increase Executive's one-way commute distance by more
than fifty (50) miles from Executive's then principal residence.
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For purposes of Section 6.2, "Permanent Disability" shall mean the
incapacity or inability of Executive to perform substantially all of his
required duties, in the reasonable opinion of a qualified physician (mutually
acceptable to Executive and Employer), for a period of ninety (90) consecutive
days, due to a physical or mental illness or incapacity, and such qualified
physician reasonably determines that it is unlikely that Executive will be able
to return to full performance of Executive's duties within thirty (30) days
thereafter.
TERMINATION PAY
Effective upon the termination of this Agreement, Employer will be
obligated to pay Executive only such compensation as is provided in this Section
6.3, and in lieu of all other amounts and in settlement and complete release of
all claims Executive may have against Employer.
6.3.1 TERMINATION BY EMPLOYER FOR CAUSE OR TERMINATION BY
EXECUTIVE OTHER THAN FOR CAUSE. If Employer terminates this Agreement for Cause,
or Executive terminates this Agreement other than for Cause, Executive will be
entitled to receive his Salary only through the date such termination is
effective.
6.3.2 TERMINATION UPON DEATH OR PERMANENT DISABILITY. If this
Agreement is terminated because of Executive's death or permanent disability,
Executive will be entitled to receive his Salary through the end of the calendar
month in which his death or Permanent Disability termination occurs, plus a
Severance Benefit.
6.3.3 TERMINATION BY EMPLOYER OTHER THAN FOR CAUSE. If
Employer terminates this Agreement other than for Cause, Employer will pay
Executive his Salary through the end of the calendar month in which such
termination occurs. Employer will also pay the Severance Benefit, provided
Executive first signs a full waiver and release of claims against Employer and
its directors, officers, employees, and affiliates.
6.3.4 TERMINATION BY EXECUTIVE FOR CAUSE. If the Executive
terminates this Agreement for Cause, the Employer will pay Executive his Salary
through the end of the calendar month in which such termination occurs. Employer
will also pay the Severance Benefit, provided Executive first signs a full
waiver and release of claims against Employer and its directors, officers,
employees, and affiliates.
6.3.5 BENEFITS. Executive's accrual of, or participation in
plans providing for benefits will cease at the effective date of the termination
of this Agreement, and Executive will be entitled to accrued Benefits pursuant
to such plans only as provided in such plans. Following Executive's termination,
Executive has the right to continue coverage under the Company's group health
plans as provided by the Consolidated Omnibus Budget Reconciliation Act of 1985,
as amended ("COBRA"), provided the Executive makes a timely election for such
continued coverage. Executive agrees that the continuation of his Benefits
pursuant to Section 1.11 and Section 6.3.3 or 6.3.4 of this Agreement shall not
extend the maximum coverage period available under COBRA, and that Executive
must timely elect COBRA coverage in order for such group health plan coverage to
extend beyond the Severance Period.
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6.3.6 CHANGE IN CONTROL. If Executive is terminated by the
Employer other than for Cause, or terminates this Agreement for Cause, at any
time within one (1) year of a Change in Control, then Executive shall be
entitled to payment of the Severance Benefit, unless Executive is entitled to a
greater termination payment under any other agreement. A "Change in Control"
shall mean as defined in Section 409A((a)(2)(A)(v) of the Internal Revenue Code
of 1986, as amended, and the regulations issued thereunder. In order to be
eligible to receive payment pursuant to this Section, Executive agrees that he
must first sign a full waiver and release of claims against Employer, its
directors, officers, employees, and affiliates.
6.3.7 CODE SECTION 409A. If any provision of this Agreement
(or of any award of compensation) would cause the Executive to incur any
additional tax or interest under Section 409A of the Internal Revenue Code
("Code") or any regulations or Treasury guidance promulgated thereunder, the
Company shall, after consulting with the Executive, reform such provision to
comply with Code Section 409A; provided that the Company agrees to maintain, to
the maximum extent practicable, the original intent and economic benefit to the
Executive of the applicable provision without violating the provisions of Code
Section 409A.
Notwithstanding any provision of this Agreement to the contrary, if Executive is
deemed on the date of termination to be a "specified employee," within that
term's meaning under Code Section 409A(a)(2)(B), then with regard to any payment
or the provision of any benefit required to be delayed in compliance with Code
Section 409A(a)(2)(B), such payment or benefit shall not be made or provided
(subject to the last sentence hereof) prior to the earlier of (i) the expiration
of the six (6) month period measured from the date of Executive's "separation
from service" (as such term is defined in Treasury regulations issued under Code
Section 409A) or (ii) the date of his death (the "Deferral Period"). Upon the
expiration of the Deferral Period, all payments due Executive under this
Agreement that would have been paid during the Deferral Period if Executive was
not a specified employee shall be paid in a lump sum within thirty (30) days,
and any remaining payments and benefits due under this Agreement shall be paid
or provided in accordance with the normal payment dates specified for them
herein. Notwithstanding the foregoing, to the extent that this paragraph applies
to the provision of any ongoing welfare benefits to Executive, the Executive
shall pay the full cost of premiums for such welfare benefits during the
Deferral Period and the Company shall pay the Executive an amount equal to the
amount of such premiums paid by the Executive during the Deferral Period
promptly after its conclusion.
NON-DISCLOSURE COVENANT
ACKNOWLEDGMENTS BY THE EXECUTIVE
Executive acknowledges that (a) during the Employment Period and as a
part of his employment, Executive will be afforded access to Confidential
Information; (b) public disclosure of such Confidential Information could have
an adverse effect on Employer and its business; and (c) the provisions of this
Section 7 are reasonable and necessary to prevent the improper use or disclosure
of Confidential Information.
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AGREEMENTS OF THE EXECUTIVE
In consideration of the compensation and benefits to be paid or
provided to Executive by Employer under this Agreement, Executive covenants as
follows:
During and following the Employment Period, Executive will
hold in confidence the Confidential Information and will not disclose it to any
person except with the specific prior written consent of Employer or except as
otherwise expressly permitted by the terms of this Agreement.
Any trade secrets of Employer will be entitled to all of the
protections and benefits under Washington trade secret law, RCW 19.108 et seq.,
and any other applicable law. If any information that Employer deems to be a
trade secret is found by a court of competent jurisdiction not to be a trade
secret for purposes of this Agreement, such information will, nevertheless, be
considered Confidential Information for purposes of this Agreement. Executive
hereby waives any requirement that Employer submit proof of the economic value
of any trade secret or post a bond or other security.
None of the foregoing obligations and restrictions applies to
any part of the Confidential Information that Executive demonstrates was or
became generally available to the public other than as a result of a disclosure
by Executive.
Executive will not remove from Employer's premises (except to
the extent such removal is for purposes of the performance of Executive's duties
at home or while traveling, or except as otherwise specifically authorized by
Employer) any document, record, notebook, plan, model, component, device, or
computer software or code, whether embodied in a disk or in any other form
(collectively, the "Proprietary Items"). Executive recognizes that, as between
Employer and Executive, all of the Proprietary Items, whether or not developed
by Executive, are the exclusive property of Employer. Upon termination of this
Agreement by either party, or upon the request of Employer during the Employment
Period, Executive will return to Employer all of the Proprietary Items in
Executive's possession or subject to Executive's control, and Executive shall
not retain any copies, abstracts, sketches, or other physical embodiment of any
of the Proprietary Items.
DISPUTES OR CONTROVERSIES
Executive recognizes that should a dispute or controversy arising from
or relating to this Agreement be submitted for adjudication to any court,
arbitration panel, or other third party, the preservation of the secrecy of
Confidential Information may be jeopardized. All pleadings, documents,
testimony, and records relating to any such adjudication will be maintained in
secrecy and will be available for inspection by Employer, Executive, and their
respective attorneys and experts, who will agree, in advance and in writing, to
receive and maintain all such information in secrecy, except as may be limited
by them in writing.
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NON-COMPETITION AND NON-INTERFERENCE
ACKNOWLEDGMENTS BY THE EXECUTIVE
Executive acknowledges that: (a) the services to be performed by him
under this Agreement are of a special, unique, unusual, extraordinary, and
intellectual character; (b) Employer competes with other businesses that are or
could be located in any part of the world; and (c) the provisions of this
Section 8 are reasonable and necessary to protect Employer's business.
Executive acknowledges that the products or activities and services of
the Employer include, but are not limited to, the acquisition, assemblence,
marketing and sales of Employer's products and services, including industry web
site development and hosting, rate and fee content information from lenders for
mortgage brokers, and Internet-based technology solutions for mortgage brokers
and lenders. Executive further acknowledges that the products, activities, and
services of the Employer may expand during Executive's term of employment, and
that the provisions of this Section 8 apply to all products, activities, and
services of Employer in effect at the time of Executive's termination.
COVENANTS OF THE EXECUTIVE
In consideration of the acknowledgments by Executive, and in
consideration of the compensation and benefits to be paid or provided to
Executive by Employer, Executive covenants that he will not, directly or
indirectly:
During the Employment Period, except in the course of his
employment hereunder, engage or invest in, own, manage, operate, finance,
control, or participate in the ownership, management, operation, financing, or
control of, be employed by, associated with, or in any manner connected with,
lend Executive's name or any similar name to, lend Executive's credit to or
render services or advice to, any business whose products or activities compete
in whole or in part with the products or activities of Employer anywhere within
the United States; provided, however, that Executive may purchase or otherwise
acquire up to (but not more than) one percent of any class of securities of any
enterprise (but without otherwise participating in the activities of such
enterprise) if such securities are listed on any national or regional securities
exchange or have been registered under Section 12(g) of the Securities Exchange
Act of 1934;
Whether for Executive's own account or for the account of any
other person, at any time during the Employment Period and the Post-Employment
Period, solicit business of the same or similar type being carried on by
Employer, from any person known by Executive to be a customer of Employer,
whether or not Executive had personal contact with such person during and by
reason of Executive's employment with Employer;
Whether for Executive's own account or the account of any
other person (a) at any time during the Employment Period and the
Post-Employment Period, solicit, employ, or otherwise engage as an employee,
independent contractor, or otherwise, any person who is an employee of Employer
or in any manner induce or attempt to induce any employee of Employer to
terminate his employment with Employer; or (b) at any time during the Employment
Period and the Post Employment Period, interfere with Employer's relationship
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with any person, including any person who at any time during the Employment
Period was an employee, contractor, supplier, or customer of Employer; or
At any time during or after the Employment Period, disparage
Employer or any of its shareholders, directors, officers, employees, or agents.
For purposes of this Section 8.2, the term "Post-Employment Period"
means the six (6) month period beginning on the date of termination of
Executive's employment with Employer.
If any covenant in this Section 8.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding, and enforceable against Executive.
The period of time applicable to any covenant in this Section 8.2 will
be extended by the duration of any violation by Executive of such covenant.
Executive will, while the covenant under this Section 8.2 is in effect,
give notice to Employer, within ten (10) days after accepting any other
employment, of the identity of Executive's employer. Employer may notify such
employer that Executive is bound by this Agreement and, at Employer's election,
furnish such employer with a copy of this Agreement or relevant portions
thereof.
GENERAL PROVISIONS
INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
Executive acknowledges that the injury that would be suffered by
Employer as a result of a breach of the provisions of this Agreement (including
any provision of Sections 7 and 8) would be irreparable and that an award of
monetary damages to Employer for such a breach would be an inadequate remedy.
Consequently, Employer will have the right, in addition to any other rights it
may have, to obtain injunctive relief to restrain any breach or threatened
breach or otherwise to specifically enforce any provision of this Agreement.
Without limiting Employer's rights under this Section 9 or any other remedies of
Employer, if Executive breaches any of the provisions of Section 7 or 8,
Employer will have the right to cease making any payments otherwise due to
Executive under this Agreement.
COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT COVENANTS
The covenants by Executive in Sections 7 and 8 are essential elements
of this Agreement, and without Executive's agreement to comply with such
covenants, Employer would not have entered into this Agreement or employed
Executive. Executive has independently consulted his counsel and has been
advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by
Employer.
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Executive's covenants in Sections 7 and 8 are independent covenants and
the existence of any claim by Executive against Employer under this Agreement or
otherwise, will not excuse Executive's breach of any covenant in Section 7 or 8.
If Executive's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of Executive in Sections 7 and 8.
REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE
Executive represents and warrants to Employer that the execution and
delivery by Executive of this Agreement do not, and the performance by Executive
of Executive's obligations hereunder will not, with or without the giving of
notice or the passage of time, or both: (a) violate any judgment, writ,
injunction, or order of any court, arbitrator, or governmental agency applicable
to Executive; or (b) conflict with, result in the breach of any provisions of or
the termination of, or constitute a default under, any agreement to which
Executive is a party or by which Executive is or may be bound.
OBLIGATIONS CONTINGENT ON PERFORMANCE
The obligations of Employer hereunder, including its obligation to pay
the compensation provided for herein, are contingent upon Executive's
performance of Executive's obligations hereunder.
WAIVER
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by either party in
exercising any right, power, or privilege under this Agreement will operate as a
waiver of such right, power, or privilege, and no single or partial exercise of
any such right, power, or privilege will preclude any other or further exercise
of such right, power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law, (a) no claim or
right arising out of this Agreement can be discharged by one party, in whole or
in part, by a waiver or renunciation of the claim or right unless in writing
signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs, and
legal representatives, including any entity with which Employer may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of Executive under this Agreement, being
personal, may not be delegated.
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NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by facsimile
(with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to Executive:
Xxxxxxx X. Xxxxx
000 00xx Xx X
Xxxxxxx, XX 0000
Telephone No.: (206) 000- 0000
or to such other addresses and faxes as the parties may from time to time
designate in writing.
If to Employer:
Board of Directors
LION, Inc.
0000-00xx Xxx. XX, Xxxxx 000
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
or to such other addresses and telephone numbers as the Employer may from time
to time designate in writing.
ENTIRE AGREEMENT; AMENDMENTS
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, between the parties hereto with respect to the
subject matter hereof, provided, however, that any prior or contemporaneous
agreements between the parties concerning confidentiality, intellectual
property, inventions, non-competition, and/or non-solicitation shall remain in
full force and effect if and to the extent that they provide greater protection
to Employer. This Agreement may not be amended orally, but only by an agreement
in writing signed by the parties hereto.
ARBITRATION
Except when injunctive relief is sought pursuant to Section 9.1,
Employer and Executive shall settle any and all claims, disputes or
controversies arising out of or relating to Executive's candidacy for
employment, employment and/or cessation of employment with Employer, exclusively
by final and binding arbitration before a single neutral Arbitrator. Such claims
include claims under federal, state and local statutory or common law; wrongful
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termination; claims for wages, including, but not limited to, claims under the
Fair Labor Standards Act, Washington Minimum Wage Act, or other state
equivalent; breach of public policy; claims of discrimination or harassment,
including, but not limited to, claims under the Age Discrimination in Employment
Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991,
the Americans with Disabilities Act, the Washington Law Against Discrimination,
and any other state or local discrimination laws. The arbitration shall be
submitted to the American Arbitration Association, and it shall be conducted in
Seattle, Washington in accordance with the Commercial Dispute Resolution
Procedures then in effect. Judgment upon the award rendered may be entered only
in King County Superior Court.
GOVERNING LAW
This Agreement will be governed by the laws of the State of Washington
without regard to conflicts of laws principles.
JURISDICTION
Any action or proceeding seeking to enforce any provision of, or based
on any right arising out of, this Agreement may be brought against either of the
parties in the courts of the State of Washington, County of King, and each of
the parties consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on either party anywhere in the world.
SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or Sections of this
Agreement unless otherwise specified. All words used in this Agreement will be
construed to be of such gender or number as the circumstances require. Unless
otherwise expressly provided, the word "including" does not limit the preceding
words or terms.
SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
13
DRAFTSMANSHIP
There shall be no presumption of draftsmanship in the preparation or
execution of this Agreement.
COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
EMPLOYER: EXECUTIVE:
-------------------------------------- ---------------------------------------
Xxxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx
Director, Chairman of
Compensation Committee
14
EXHIBIT A
(STOCK OPTION VESTING SCHEDULE)
Vesting
Option Vesting Schedule Shares Trigger
------------------------------- ----------------- ----------------
200,000 $ 0.40
400,000 $ 0.50
600,000 $ 0.65
800,000 $ 0.80
---------------
Total Option Grant 2,000,000
===============
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